ASSIGNMENT

Name : - Palak Srivastava

Email ID :- palaksri2609@gmail.com

Contact no. – 9335056343

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ANALYTICAL QUESTIONS (WITHIN 200 WORDS EACH)10 Marks each

1. Can Mediation and Arbitration be combined?

It is possible to combine mediation with arbitration. In such a case, the dispute is submitted
first to mediation under the WIPO Mediation Rules. Then, if a settlement is not reached within a
defined period of time (it is recommended that the parties provide for either 60 or 90 days), or if
a party refuses to participate or to continue to participate in the mediation, the dispute is referred
for a binding decision through arbitration under the WIPO Arbitration Rules (or, if the parties so
agree, through expedited arbitration). The advantage of the combined procedure is the incentive
that it offers for a good faith commitment by both parties to the mediation process, since the
consequence of a failure to reach an agreed settlement will be more tangibly measurable in
terms of the financial and management commitment that would need to be incurred in the
subsequent arbitration procedure.

2. Despite having numerous advantages, the potential of Alternative Dispute Resolution

mechanism remains underutilized in India. Analyze?

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 Despite having numerous advantages, the potential of Alternative Dispute Resolution
(ADR) mechanism remains underutilized in India due to various reasons:

Lack of trained mediators: The essence of mediation lies in the role of the mediator as a
facilitator. However, it has been experienced in India overall that there is a shortage of
trained mediators in the country.

Lack of referrals: Section 89 of the Code of Civil Procedure provides for reference of
cases by the judges to one of the modes of alternative dispute resolution. However,
experience shows that the Judges are not referring cases to the techniques of alternative
dispute resolution.

Appeals to regular courts: The parties almost invariably appeal against arbitration awards,
resulting in long drawn-out disputes that can last up to 10 years.

Lack of awareness: Lack of awareness about ADR mechanism amongst the people,
especially in rural areas is also one of the obstacles in realization of full potential of ADR
mechanism. There is also lack of awareness amongst judges, advocates and litigants
regarding the effectiveness and usefulness of the process of mediation.

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3. Discuss the meaning and role of Arbitrator and Arbitration Agreement.

An arbitrator reviews testimony and evidence presented by the disputed parties at a hearing and
resolves the dispute by issuing a decision that may include an award of money. You can think of
an arbitrator as a private judge hired by the disputing parties to resolve their dispute. If the
arbitration is binding, the parties cannot seek a reversal of the decision in court except under very
limited circumstances. However, the successful party can seek help from a court in enforcing the
arbitrator's decision

Arbitration agreements are usually signed at the beginning of a business relationship – long
before there’s a disagreement. They are often just a few sentences long, and are commonly found
near the end of a larger contract under a heading such as “Arbitration” or “Dispute Resolution.”
Employee arbitration agreements may be buried in an employment contract or employee
handbook. An arbitration clause will typically say that all disputes arising under the larger
contract will be submitted to binding arbitration. Sometimes a contract will say that only certain
disputes will be arbitrated. The agreement may also say how the arbitration will be conducted.

4. Should Mediators be regulated through a law in India? Why or Why not?

Yes, mediators should be regulated through a law in India because in mediation, it's the parties
instead who are encouraged to arrive at a decision with a trained mediator playing the role of a
facilitator. The mediator has no powers and the process is completely voluntary and confidential.
Mediation is a sophisticated way of resolving disputes which through the court process may take a
number years and further deteriorate the relation between the parties such as in matrimonial cases and
family business.

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Under Section 89 of The Code of Civil Procedure, 1908, a court can refer parties to alternate
dispute resolution mechanism, including mediation, if it believes there's a possibility of mutual
settlement. The parties can also voluntarily opt for mediation. The high courts run their own
mediation centres in collaboration with judges and lawyers.

The scope of mediation in India covers a wide range of civil disputes which include matrimonial
cases; consumer issues; business contracts and transactions; industrial disputes; banking and
insurance matters among others. Mediation can be a very effective tool to settle disputes within
an industry through respected leaders of that industry acting as mediators.

5. Explain the nature, significance and main features of the legal principle according to which an
arbitral tribunal is entitled to rule on its own jurisdiction. What are the pros and cons of the legal
principle?

The legal principle according to which an arbitral tribunal is entitled to rule its own jurisdiction
is called as competence-competence. Under this doctrine, the arbitrator(s) may determine the
existence, validity and scope of the arbitration clause and parties do not need to refer these issues
to national courts. The principle is also called “Kompetenz Kompetenz” in many sources, but it
is preferable to avoid the confusing German expression, which would imply arbitrators are

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empowered to make a final ruling as to their jurisdiction, with no subsequent review of the
decision by any court.

The principle has two main effects. The positive effect, which is recognized in most
jurisdictions, enables the arbitral tribunal to rule on its own jurisdiction. And the negative effect,
whose application varies across jurisdictions, allows “arbitrators to be not the sole judges, but the
first judges of their jurisdiction.” The negative effect is also supported in many jurisdictions and
international conventions. The principle is also recognized by the main institutional arbitration
rules.

Any participation in proceedings on the merits without challenging the jurisdiction of the
tribunal is considered as recognition of the arbitration and tribunal’s jurisdiction in many modern
arbitration laws.

I) Advantages of Law -

1) Uniformity and Certainty: Law provides Uniformity and certainty to the administration of
justice. The same law has to be applied in all cases. There can be no distinction between one
case and another case if the facts are the same.

2) Protection against arbitrary, biased and dishonest decisions: If the administration of Justice is
left completely to the individual discretion of a judge, improper motives and dishonest opinions
could affect the distribution of justice. Law as Fixed Principles of the law of justice avoids the
danger of arbitrary, biased and dishonest decisions.

3) Freedom from errors of individual judgement: The fixed principles of law protect the
administration of justice from the errors of individual judgement. Commenting on this aspect of
law, the Greek Philosopher Aristotle observed that "to seek to be wiser than the law is the very
thing which is by good laws forbidden." This, in other words, means that "law is not always
necessarily wise but on the whole and in the long run it is wiser than those who administer it".

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 4) Reliability : There is another advantage of law is its reliability. It is more reliable than the
individual judgements of the Courts. The human mind is fallible and judges are no exception.
The wisdom of the legislature which represents the wisdom of the people is safer and more
reliable means of protection than the momentary fancy of the individual judge.

II) Disadvantages of Law:

Law has not only advantages but some disadvantages also, Disadvantages of law are as follows:

1) The rigidity of law: An Ideal legal system keeps on changing according to the changing needs
of the people. But because of the rigidity of law, it is unable to keep pace with the fast-changing
society. There is always a gap between the advancement of society and the legal system
prevailing in it. The lack of flexibility in law results in hardship and injustice to the people.

2) Conservative Nature: Another disadvantage of law is that its Conservative Nature. Law is
conservative in its approach. The Bar and Bench are generally conservative in their approach to
the dispensation of justice. The result is is that very often the law is static. This is not conducive
to a progressive society.

3) Formalism : The Law suffers from excessive formalism greater emphasis laid on the form of
law rather than its substance. Undue formalism causes unnecessary delay in dispensation of
justice.

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4) Complexity : Another disadvantage of law is its Complexity. It is true that every law effort is
made to make law as simple as possible but it is not possible to make every law simple. That is
due to the Complex nature of modern society.

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